Digestión anaerobia

On April 4, 2003, at the request of the CDC, President Bush signed Executive Order 13295, adding SARS to the list of communicable diseases for which federal isolation and quarantine is authorized.94 Thus, SARS joined cholera, diphtheria,

infectious tuberculosis, plague, smallpox, yellow fever, and viral hemorrhagic fevers as communicable diseases detainable by the federal government.

Although public health law is generally thought of as a state function within the United States federal system, SARS is an example where the flexibility of federal law allowed the CDC to exercise leadership. With only 164 total confirmed, suspected, or probable SARS cases in the entire country, the United States relied heavily on “public education” and “voluntary” quarantine and isolation to contain the outbreak. The legal system for implementing quarantine and isolation in the United States, however, may become more important if an outbreak of SARS or another disease became more widespread.

1. Federal Authority

a. Statutory Authority

Under Section 361(b) of the Public Health Service Act,95 the list of diseases for which quarantine or isolation is legally authorized must be specified in an Executive Order signed by the President.96 With the signing of the executive order on April 4, 2003 the federal government created the legal authority to prevent the introduction,

transmission, or spread of suspected cases of SARS in the United States through control of entry at its borders. With this grant of power, the CDC established a set of interim rules regarding interstate and foreign quarantine to include SARS. These rules allow the CDC to “ isolate, quarantine, or place the person under surveillance and may order disinfection” based on a reasonable belief that a person arriving in the United States or traveling in interstate commerce is infected or may have been exposed to SARS.97 These interim rules were in place by April 10, 2003, a little more than a week after the WHO issued a global health alert on April 2, 2003.

The “interstate commerce” jurisdiction of the CDC gives it the authority to intervene in what might be a local outbreak or case of SARS on the theory that the infected individuals are likely to move across state lines. The statute authorizes the CDC to promulgate regulations that provide “for the apprehension and examination of any individual reasonably believed to be infected with a communicable disease … and (A) to be moving or about to move from a State to another State; or (B) to be a probable source of infection to individuals who, while infected with such disease…, will be moving from a State to another State.” 98 The interim rules thus gave the CDC ample legal authority to respond to a SARS outbreak anywhere in the country. For that authority to be effective, federal resources would have to be increased in the event of a SARS epidemic.

The Federal Emergency Management Agency (FEMA) was created in 1978 in a government reorganization, in which the function of agencies from the Departments of Defense, Commerce, Housing and Urban Development, and the General Services

Administration were merged into one new agency. Under regulations for securing FEMA assistance,99 when an “incident occurs or threatens to occur in a State” that would not qualify as a major disaster (generally a natural catastrophe), a Governor of a State may request that the President of the United States declare an “emergency.”100 _An

“emergency” is defined as “any occasion or instance, for which, in the determination of the President, [f]ederal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety . . . .”101 The basis for a governor’s request must include, among other information, the finding that the situation is of “such severity and magnitude that effective response is beyond the capability of the State and the affected local government(s),” and that the situation requires “supplementary Federal emergency assistance to save lives and to protect property, public health and safety . . . .”102 If an epidemic meets these and other conditions, the epidemic would almost certainly constitute an “emergency.”

Once the President makes an emergency declaration in response to a governor’s request, the FEMA Associate Director or Regional Director “may provide assistance,” including directing “any federal agency, with or without reimbursement, to utilize its authorities and the resources granted to it under federal law (including personnel, equipment, supplies, facilities, and managerial, technical and advisory services) in

support of State and local emergency assistance efforts to save lives, protect property and

public health and safety … .”103 Available assistance also may include, for example, provision of health and safety measures; management, control, and reduction of immediate threats to public health and safety; and emergency assistance under the Stafford Act through federal agencies.104

Closely mirroring FEMA regulations, the Stafford Act105 authorizes the President, pursuant to a declaration of an emergency, to direct any federal agency to use its

authority and resources granted to it under federal law to, among other things, support state and local emergency assistance efforts; coordinate all relief assistance; provide technical and advisory assistance; and provide emergency assistance through federal agencies.106 Neither the federal statute nor regulations limit or otherwise specifically define such “support” or “emergency assistance” to mean only non-financial support. Presumably, a federal agency may exercise its discretion to provide state and local governments with financial support in lieu of or in addition to other types of assistance authorized under the law. It may be important to note that the Stafford Act specifically provides for financial support to state and local governments, as well as individuals and businesses, in cases of major disasters and emergency preparedness. Similar reference to financial support is not included in sections of the Stafford Act pertaining to

“emergency” situations, but this omission has apparently not been interpreted to limit assistance in “emergency” situations under the Stafford Act to non-financial assistance.107

Finally, under the Stafford Act, whenever the federal assistance in an “emergency” may be “inadequate,” the President may also provide “assistance with respect to efforts to save lives, protect property and public health and safety, and lessen or avert the threat of a catastrophe.”108 The intent of this provision is to permit the President to authorize any other assistance necessary, conceivably including financial assistance.

The Department of Health and Human Services, through the CDC, has the primary responsibility within the federal government for tracking and overall management of the public health response in the event of an outbreak of SARS or comparable public health threat. However, the CDC will support rather than supplant the disease surveillance, epidemiologic response, diagnostic laboratory services, and efforts of containment of state and local public health agencies.109 Because of the CDC’s concurrent jurisdiction with the states on quarantine and isolation, it will play a back-up role as a safety net where the state fails to act, but the CDC and U.S. attorneys’ offices (which would be responsible for obtaining judicial orders) lack the staff to replace the states in leading quarantine and isolation efforts. In other words, if a state is unable to obtain an order of quarantine or isolation against an individual in a state court, the CDC actng through the local U.S. attorney, would have the legal authority to obtain such an order in federal court under federal law, but the federal government does not have the resources to replace state public health officials to obtain and enforce (via the federal marshal service) numerous orders.

2. Constitutional Issues

There is little basis to question the constitutionality of the revised CDC regulations regarding SARS, at least as directed at non-United States citizens seeking entry into the country. The federal government’s authority to exclude non-citizens attempting to enter the United States through recognized ports of entry is quite broad.110 The only constitutional challenge to the federal government’s power to control

immigration is a procedural due process claim,111 _{such as lack of notice, hearing, or} statutory authority. At present, the CDC could detain and order medical examination of any alien suspected of having SARS seeking entry into the United States without

violating the Constitution because of President Bush’s Executive Order of April 4, 2003. Ironically, those individuals in the country illegally would have more standing to

challenge the constitutionality of a detention or deportation order than those seeking to enter the United States legally because once in the country the alien is treated more like a citizen or permanent resident.112

Efforts to control the interstate spread of SARS would likely have to clear two kinds of constitutional hurdles. First, the federal government, like the states, has to exercise its broad public health power to detain individuals in a manner consistent with the constitutional protections afforded individuals. The United States Supreme Court’s landmark 1905 decision of Jacobson v. Massachusetts113 is significant not only for its upholding the constitutionality of compulsory vaccination, but also for the Court’s statement about the need for a scientific basis for the use of coercive public health

measures. In the case of SARS, this implies that the power to detain individuals must be utilized carefully and consistent with the best available scientific knowledge. An

example of how such power was carefully utilized in the past, in the case of an American couple who visited Sweden during an outbreak of smallpox in the 1960s, is one of the few cases where an individual challenged a federal detention order in federal district court. The district court judge upheld an isolation order in a public health hospital against the wife who had not been vaccinated, but not against the husband who the court noted had been vaccinated.114

A second issue, not yet resolved, is at what point the federal government’s power to prevent the spread of SARS among the states preempts the traditional police power of states with respect to public health. This is both a theoretical and a practical issue in the event of a large outbreak of SARS or other pathogens in the United States. There is probably concurrent jurisdiction between federal and state health authorities, for instance, when a person suspected of having SARS lives in one state, for instance, New Jersey, but works in New York City. We know of no reported instances where the issue of

federalism had to be resolved. At a practical level, the federal and state public health officials would depend on each other in the face of a widespread SARS-like outbreak. If the federal government issued a detention order against such a hypothetical commuter, it is not clear how and by whom the order would be enforced. Federal statutes authorize the Coast Guard and customs agents to aid in the enforcement of federal quarantine rules and regulations.115 The CDC is authorized to seek the assistance of state and local officials in the enforcement of federal quarantine orders,116 and probably would do so. Involuntary detention by the federal government for SARS or any communicable disease would have to consider a possible constitutional challenge. With notions of liberty and privacy protected by the United States Supreme Court as constitutional rights,117 federal and state officials must apply quarantine and isolation laws with an eye towards a constitutional challenge by an individual. At a minimum, there must be, in the case of involuntary isolation, a written order directed at the individual. There must be adequate evidence to justify the conclusion that the individual represents a threat and meets a previously established “case definition.” For instance, an order might use the CDC guidelines to allege the person is a “probable case” of SARS because of recent travel to a SARS-infected area and symptoms such as a fever and cough. The requested order must be specific and time-limited, and there must be an opportunity to be heard by a neutral fact-finder and eventually a judge. It is probably constitutional for the hearing to follow detention in the case of isolation of a probable infected person, provided the hearing is held promptly after detention and the detainee has the right to representation and appeal to a court.118

Quarantine, on the other hand, requires a slightly more complicated constitutional analysis because of two factors. First, the individual, by definition, is not yet infected. Second, quarantine could apply to a large number of people, rather than focus on a particular individual. Courts also might apply greater scrutiny to quarantine orders because at least some justices have recently used a broader “liberty” analysis rather than the more limited fundamental rights analysis to invalidate a state criminal statute.119

B. State and Local Law

Protection of patient privacy seems to have guided the few reports of the actual use of quarantine and isolation by state and local officials in the United States to contain the spread of SARS. According to media reports, New York City public health officials involuntarily detained a tourist who became sick with flu-like symptoms in early April 2003. The tourist had stopped in Hong Kong on his way to New York and refused to remain in a hospital in New York where he received treatment. It is significant that the public health officials never released the name of the individual, the hospital, or the man’s country of origin in an attempt to protect his privacy. This was only the second time in over 25 years that the New York City Public Health Department involuntarily detained a person suspected of having a communicable disease other than tuberculosis. At the time of the incident, New York City had 18 suspected cases and two probable cases of SARS, using the CDC definitions. Unresolved, however, was who would pay for the tourist/patient’s 10 days of involuntary detention and isolation in a New York City hospital.120 No one in the media has yet asked, what would happen if the undisclosed New York hospital had demanded payment in advance before accepting the detained tourist as an involuntary patient?

The answer to that question in New York City or elsewhere in this country would require examining New York state and city ordinances to determine if public health officials have the authority to “seize” a hospital and perhaps compensate later. By coincidence, at the time of the SARS outbreak, New York City was in the process of revising its public health code to deal with a possible bioterrorist attack. These amendments clarify the authority to detain suspected cases of diseases in either their home or a hospital and provide some procedural protections for those detained.

Consistent with U.S. notions of due process, these regulations are built on the assumption that individual orders will be issued to restrict movement.121

These New York City rules could be adopted because the Charter of the City of New York grants the Board of Health the authority to amend the rules. It is unlikely that all local boards across the country have such rulemaking authority because of the great variation among state and local laws regarding quarantine and isolation. Utah’s code, for instance, grants the health commissioner the authority “to require quarantine, vaccination or treatment of any individual when he determines any such measures to be necessary to control the spread of any disease of public importance.”122 Indiana, by contrast, has a very detailed statute for determining when involuntary treatment, isolation, and

quarantine can be used, with authority vested in local health departments.123 Some states have detailed regulations for each disease, along with concurrent jurisdiction between the state and local legislative bodies. It is not clear in some of those jurisdictions whether the New York-type detention of a suspected case of SARS would be possible without

interpreting old statutes and new regulations, none of which refer to SARS.

Lawyers for public health departments at the state and local levels who draft quarantine and isolation orders that conform to statutory and constitutional requirements

face another obstacle. The rules of procedures of trial and appellate courts in many states, even provisions for expedited proceedings, could lead to unacceptable delays. For example, if a trial judge refused to sign an order for quarantine or isolation, it is not clear how long it would take for the public health authorities to appeal. If the normal time for an “expedited appeal” in the state is seven days, this may be totally inadequate to contain the spread of infection (in the case of a wrongfully denied order) or to redress a

deprivation of liberty (in the case of wrongfully issued order). Because quarantine and isolation case law in most jurisdictions is so old, today’s judges may be unaware of the time needs of effective public health containment in a global economy. More generally, the role of the judiciary in state public health law needs careful study because courts are crucial in ensuring the proper balance between public health needs and the civil liberties and dignity of individuals and the community.

In the end, quarantine and isolation in the United States must be studied from the perspective of state administrative law. Principles of delegation and the scope of judicial review may be used to limit an overly broad public health statute or to bring coherence to an overly detailed one. The overlap between state and local jurisdiction in public health matters in a given state is not simply a matter of municipal law, but require reading into any decision involving quarantine and isolation principles of constitutional law that balance the rights of individuals with the community’s interest in public health. Thus, whether a local public health official could legally detain a person suspected of having SARS and seek judicial review after the detention is a matter of untangling statutory authority, principles of state administrative law, and constitutional principles that constrain government control over individuals.124

C. Travel

The spread of SARS from China to the rest of the world, largely through travelers staying at a single hotel in Hong Kong, demonstrates the importance of limiting the mobility of infected individuals. As noted in Section II, under the Public Health Service Act,125 _{the Division of Global Migration and Quarantine of the Center for Infectious} Diseases of CDC has been delegated the responsibility for preventing the introduction, transmission, and spread of communicable diseases into the U.S. CDC health officers are stationed in major gateway cities throughout the world to assess the health of travelers